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Consideration of the Gulf Cooperation Council v. ICANN Independent Review Process Final Declaration

Whereas, on 24 October 2016, ICANN received the Independent Review Process (IRP) Final Declaration in the IRP filed by the Gulf Cooperation Council (GCC) against ICANN (Final Declaration).

Whereas, the IRP Panel declared that "the GCC is the prevailing Party," and the "action of the ICANN Board with respect to the application of Asia Green relating to the '.persiangulf' gTLD was inconsistent with the Articles of Incorporation and Bylaws of ICANN." (Final Declaration at pg. 45, X.3-4 and pg. 44, X.1, ¶¶ 143, 145.)

Whereas, the Panel recommended that the "Board take no further action on the '.persiangulf' gTLD application, and in specific not sign the registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." (Final Declaration at pg. 44, X.2.)

Whereas, after thorough review and consideration of the Final Declaration, and as set forth in more detail in the Rationale section below, it seems that the Panel may have based its findings and recommendation on what may be unsupported conclusions and/or incorrect factual premises, and may not have given due consideration to the Board's consideration of facts and materials relevant to the GCC's concerns.

Whereas, in accordance with Article IV, section 3.21 of the operative ICANN Bylaws, the Board has considered the Final Declarations.

Resolved (2017.03.16.08), the Board has determined that further consideration and analysis of the Final Declaration is needed, and directs the ICANN President and CEO, or his designee(s), to conduct or cause to be conducted a further analysis of the Panel's factual premises and conclusions, and of the Board's ability to accept certain aspects of the Final Declaration while potentially rejecting other aspects of the Final Declaration.

Rationale for Resolution:

The Gulf Cooperation Council (GCC) initiated Independent Review Process (IRP) proceedings challenging the New gTLD Program Committee's (NGPC's) decision on 10 September 2013 that "ICANN will continue to process [the .PERSIANGULF] application in accordance with the established procedures in the [Guidebook.]" (See Resolution 2013.09.10.NG03 (Annex 1), available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013....) The GCC objected to the application for the .PERSIANGULF generic top level domain (gTLD) submitted by Asia Green IT System Ltd. (Asia Green) due to what the GCC described as a long-standing naming dispute in which the "Arab nations that border the Gulf prefer the name 'Arabian Gulf'" instead of the name "Persian Gulf." (See IRP Request, ¶ 3, available at https://www.icann.org/en/system/files/files/gcc-irp-request-05dec14-en.pdf [PDF, 2. 44 MB].)

The GCC, and certain of its member States, first voiced concerns over Asia Green's .PERSIANGULF application (Application) in 2012. The governments of the United Arab Emirates, Oman, Baharain and Qatar sent letters to the GAC and ICANN invoking the Governmental Advisory Committee's (GAC's) Early Warning system regarding the Application and requesting that the GAC issue advice regarding whether a .PERSIANGULF gTLD is appropriate. As a result, on 20 November 2012, as set forth in the Guidebook, the GAC issued an Early Warning on the Application claiming that "[t]he applied for new gTLD is problematic and refers to a geographical place with [a] disputed name" and "[l]ack[s] […] community involvement and support." (See GAC Early Warning at https://gacweb.icann.org/display/gacweb/GAC+Early+Warnings?preview=/2713... [PDF, 93 KB].)

Subsequently, in December 2012, ICANN's Independent Objector (IO) reviewed the GCC's concerns, concluded that the Application was not contrary to generally accepted legal norms of morality and public order, and therefore found that he had no basis to object to the Application.

On 13 March 2013, the GCC filed a Community Objection against the Application. While the GCC's Community Objection was pending, the GAC met during ICANN's Beijing, China meeting in April 2013. In the Beijing Communiqué, the GAC issued several different types of advice on numerous gTLD applications and advised ICANN that it wanted to give further consideration at its next meeting in Durban, South Africa to several gTLD applications, including the application for .PERSIANGULF, and requested that ICANN not proceed beyond initial evaluation of these applications until the further consideration was concluded. (See Beijing Communiqué available at https://www.icann.org/en/system/files/correspondence/gac-to-board-11apr1... [PDF, 156 KB].)

As required by the Guidebook, the NGPC considered the GAC advice provided in the Beijing Communiqué and, on 4 June 2013, adopted a Scorecard reflecting its response. The NGPC accepted the GAC's request for additional time to consider several other applications, including the .PERSIANGULF application, clarifying that "ICANN will not proceed beyond initial evaluation of these identified strings" until the GAC has had additional time to provide advice on the applications. The NGPC also noted that Community Objections had been filed regarding several of these applications, including the .PERSIANGULF application. (See NGPC Resolution 2013.06.04.NG01 available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013....)

During the week of 13 July 2013, the GAC met during the ICANN Public Meeting in Durban, South Africa. In the Durban Communiqué, which was the official statement from the GAC to ICANN as a result of the Durban meeting, the GAC informed ICANN that it "finalized its consideration" of the Application and that the GAC "does not object" to the Application proceeding. In other words, the GAC effectively provided no advice to the Board regarding the application for .PERSIANGULF. Thereafter, the NGPC met on 10 September 2013 to consider the Durban Communiqué and adopted an NGPC Scorecard reflecting the NGPC's response. (See NGPC Resolution 2013.09.10.NG03 available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013....) In its Scorecard, which was publicly posted on 12 September 2013, the NGPC noted that the GAC "has finalized it consideration of the following string, and does not object to it proceeding: .persiangulf." In addition, the NGPC stated that "ICANN will continue to process that application in accordance with the established procedures in the [Guidebook]," but noted that the GCC's Community Objection to the Application remained pending.

Following that, on 30 October 2013, an independent expert appointed by the International Chamber of Commerce (ICC) determined that the GCC's formal Community Objection to the Application did not prevail.

The GCC's IRP Request, submitted on 5 December 2014, sought a declaration stating that the NGPC's decision to proceed with the Application violates ICANN's Articles and Bylaws, and recommending to the Board that ICANN take no further action on the .PERSIANGULF gTLD. (See Final Declaration, ¶ 65.)

The Panel declared the GCC to be the prevailing party, and declared that the "action of the ICANN Board with respect to the application of Asia Green relating to the '.persiangulf' gTLD was inconsistent with the Articles of Incorporation and Bylaws of ICANN." (Final Declaration at pgs. 44-45, X.1, X.3.) The Panel further declared that "ICANN is to bear the totality of the GCC's costs in relation to the IRP process," and "shall reimburse the GCC the sum of $107,924.16 upon demonstration by GCC that these incurred costs have been paid." (Final Declaration As To Costs at pg. 6, V.2.)

The Panel premised its declaration on the conclusion that the Board's reliance upon the explicit language of Module 3.1 of the Guidebook was "unduly formalistic and simplistic" (Final Declaration at ¶ 126), and that the Board should have conducted a further inquiry into and beyond the Durban Communiqué as it related to the Application even though the GAC "advice" provided in the Durban Communiqué indicated that the GAC had "finalized its consideration" of the Application and "does not object" to the Application proceeding. In other words, the GAC effectively provided no advice regarding the processing of .PERSIANGULF. The Panel further acknowledged that "the GAC sent a missive to the ICANN Board that fell outside all three permissible forms for its advice" (id. at ¶ 127), noting that the GAC did not follow GAC Operating Principle 47, which "provides that the GAC is to work on the basis of consensus, and '[w]here consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board.'" (Final Declaration at ¶ 128 (emphasis omitted).) The Panel further acknowledged that the GAC did not relay the GCC's "serious concerns as formal advice to the ICANN Board under the second advice option in Module 3.1 of the Guidebook" – noting that, if it had, then "there would necessarily have been further inquiry by and dialogue with the Board." (Final Declaration at ¶ 129.)

Nevertheless, the Panel in effect determined that the Application and the GAC "advice" regarding the Application in the Durban Communiqué should have been treated differently due to the sensitivities regarding the "Persian Gulf" and "Arabian Gulf" naming dispute and because "[t]he record reveals not only substantial sensitivity with respect to Asia Green's '.persiangulf' application but also general discord around religious or culturally tinged geographic gTLD names." (Final Declaration at ¶ 131.) According to the Panel, the Board should have gone beyond the processes and procedures set forth in the Guidebook for responding to GAC Advice because "[i]n addition to the Durban Minutes, the pending Community Objection, and public awareness of the sensitivities of the 'Persian Gulf'-'Arabian Gulf' naming dispute, the Durban Communiqué itself [] contained an express recommendation that 'ICANN collaborate with the GAC in refining, for future rounds, the Applicant Guidebook with regard to the protection of terms with national, cultural, geographic and religious significance.'" (Final Declaration at ¶ 131.) The Panel further stated that "[t]hese materials and this general knowledge could and should have come into play, if not as a matter of following GAC advice then as part of the Board's responsibility to fulfil [sic] ICANN's mission and core values." (Final Declaration at ¶ 131.)

In sum, the Panel stated that it "is not convinced that just because the GAC failed to express the GCC's concerns (made in their role as GAC members) in the Durban Communiqué that the Board did not need to consider these concerns." (Final Declaration at ¶ 131.) The Panel further stated that the Board should have reviewed and considered the GAC member concerns expressed in the GAC Durban Meeting Minutes (which were posted by the GAC in November 2013 – one month after the NGPC's 10 September 2013 Resolution adopting the GAC Advice).

Based on these conclusions, the Panel declared that the Board: (i) failed to fulfil its transparency and fairness obligations (id. at ¶ 143); (ii) "failed to exercise due diligence and care in having a reasonable amount of facts in front of them before deciding, on 10 September 2013, to allow the '.persiangulf' application to proceed" (id. at ¶ 145) (quotes and emphasis omitted); and (iii) "could not have exercised independent judgment in taking the decision, believed to be in the best interests of the company, as they did not have the benefit of proper due diligence and all the necessary facts" (id. at ¶ 145) (quotes and emphasis omitted).

The Panel also declared that: (i) "an IRP Panel cannot abuse [its] independence to substitute its own view of the underlying merits of the contested action for the view of the Board, which has substantive discretion"; and (ii) "an IRP Panel is not entrusted with second-guessing the Board, but rather 'with declaring whether the Board has acted consistently with the provisions of [the ICANN] Articles of Incorporation and Bylaws'." (Final Declaration at ¶ 94.)

In addition, the Panel recommended that "the ICANN Board take no further action on the '.persiangulf' gTLD application, and in specific not sign the registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." (Final Declaration at pg. 44, X.2.)

As required, the Board has considered the Final Declarations. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms and has not yet made any final conclusions on this matter. In particular, after conducting an initial review of the Panel's conclusions, the Board's consideration of information relevant to the GCC's concerns, and the mandates set forth in the Guidebook for responding to GAC Advice, the Board has determined that further consideration and analysis of the Panel's factual premises and conclusions is needed.

The Panel may not have given due consideration to the Board's awareness of, and sensitivity to, the GCC's concerns, which were communicated through letters from the objecting countries and the GAC Early Warning in 2012, and the Board's response to the GAC's Beijing Communiqué, accepting the GAC's request for additional time to consider several applications, including the .PERSIANGULF application. The Board was also aware of and considered the following facts that: (i) the Independent Objector reviewed the GCC's concerns and found that he had no basis to object to the Application; (ii) the ICC-appointed expert reviewed and rejected the GCC's Community Objection; and (iii) the GAC did not reach consensus or non-consensus objection advice regarding the Application (as evidenced by the Durban Communiqué). Furthermore, the Board was well versed regarding the New gTLD Program policies (developed with community input), which provide multiple safeguards for geographic names and opportunities for the GCC's concerns to be heard—all of which the GCC pursued but was unable to prevail.

Furthermore, even though the Panel references Module 3.1 of the Guidebook, the Panel may have disregarded the fact that the GAC did not provide advice to the ICANN Board that required further inquiry or dialogue. The Durban Communiqué was unequivocal that the GAC "does not object" to the Application proceeding. Similarly, the GAC Operating Principle 46 (Article XII) is clear that: "Advice from the GAC to the ICANN Board shall be communicated through the Chair." As such, GAC Meeting Minutes do not constitute GAC Advice. If the Board were to adopt the Panel's recommendation, it would result in the Board treating the .PERSIANGULF application differently than every other application that was not the subject of GAC Advice pursuant to Module 3.1, which in and of itself would be a violation of ICANN's Bylaws.

Given the Board's questions regarding the Panel's factual premises and the conclusions based upon those premises, the Board has determined that additional consideration is needed and has directed the President and CEO, or his designee(s), to conduct or cause to be conducted a further analysis of the Panel's factual premises and conclusions, and of the Board's ability to accept certain aspects of the Final Declaration while potentially rejecting other aspects of the Final Declaration.

The Board is cognizant that it is a very serious step to consider options besides fully adopting an IRP Final Declaration; however, the Board believes that it must determine if the Panel misunderstood the facts, misconstrued the Bylaws, or exceeded the scope of the IRP.

The Board recognizes the importance of this decision and wants to make clear that it takes the results of all ICANN Accountability Mechanisms very seriously, including the non-binding recommendations. The Board must also take seriously the policies and procedures set forth in the Applicant Guidebook, which were developed over years of community efforts and inputs.

Taking this decision is not expected to have a direct financial impact on the organization, although if it does, such impact has been contemplated. Conducting further review and analysis of the Panel's Final Declarations will not have any direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.